Citation Nr: 1826334
Decision Date: 05/01/18 Archive Date: 05/14/18
DOCKET NO. 12-27 680A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to an effective date prior to January 19, 2010 for the grant of service connection for esophageal reflux with Barrett's esophagitis.
2. Entitlement to an initial evaluation in excess of 30 percent for esophageal reflux with Barrett's esophagitis.
3. Entitlement to service connection for posttraumatic stress disorder (PTSD).
4. Entitlement to service connection for a skin disorder, to include basal cell carcinoma, and to include as due to herbicide exposure, sun exposure and/or asbestos exposure.
REPRESENTATION
Veteran represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Journet Shaw, Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Navy from July 1962 to July 1987. Among other awards, the Veteran received the Combat Action Ribbon.
These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2009 and November 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
In the August 2009 rating decision, the RO denied service connection for PTSD and basal cell carcinoma. The Veteran appealed that decision.
In the November 2010 rating decision, the RO granted service connection for esophageal reflux and assigned a 10 percent evaluation, effective January 19, 2010. The Veteran appealed for a higher initial evaluation and for an effective date earlier than January 19, 2010 for his award of service connection.
During the pendency of the appeal, the RO issued an August 2012 rating decision granting a 30 percent evaluation for esophageal reflux with Barrett's esophagitis, effective January 19, 2010. The Veteran continued to appeal for a higher initial evaluation for his esophageal reflux with Barrett's esophagitis. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating).
The Veteran testified before the undersigned Veterans Law Judge at a January 2018 videoconference hearing. A transcript of this hearing is of record.
After the supplemental statement of the case was issued in December 2017, a February 2018 VA examination was associated with the claims file. As the VA examination is not pertinent to the issues on appeal, no waiver of Agency of Original Jurisdiction (AOJ) consideration is required. 38 C.F.R. §§ 19.37, 20.1304 (2017).
The issue of entitlement to service connection for a skin disorder, to include basal cell carcinoma, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.
FINDINGS OF FACT
1. At his January 2018 Board hearing, the Veteran notified the Board of his intention to withdraw his claims for a higher initial evaluation for esophageal reflux with Barrett's esophagitis and for an effective date prior to January 19, 2010 for the grant of service connection for esophageal reflux with Barrett's esophagitis.
2. The competent and credible evidence does not demonstrate that the Veteran has a current diagnosis for PTSD.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a Substantive Appeal by the Veteran with respect to the issues of entitlement to a higher initial evaluation for esophageal reflux with Barrett's esophagitis and entitlement to an effective date prior to January 19, 2010 for the grant of service connection for esophageal reflux with Barrett's esophagitis have been met. 38 U.S.C. § 7105(b)(2) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).
2. The criteria to establish entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C. § 7104 (2012); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id.
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id.
Duties to Notify and Assist
Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017).
Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
Service Connection
The Veteran is generally seeking service connection for his PTSD.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f).
Effective August 4, 2014, VA amended the portion of its Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV) and replace them with references to the recently updated Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015).
If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(f)(2).
Service treatment records (STRs) do not document any findings related to any complaints, treatment or diagnosis for any mental health symptoms.
VA treatment records do not reflect any treatment or diagnosis for any mental health disorder.
In May 2009, the Veteran underwent a VA psychiatric examination. During his interview, the VA examiner noted that the Veteran reported serving an one-year tour in Vietnam. While in Vietnam, he experienced being under fire, and an incident where a rocket hit the naval ship he was aboard, but it did not explode. The VA examiner further noted that while the Veteran thought about these events, he did not appear to have significant problems with intrusive thoughts. After conducting a full evaluation of the Veteran, the VA examiner concluded that the Veteran was not currently suffering from PTSD. No Axis I diagnosis was found. Overall, the VA examiner found that the Veteran had experienced trauma during service, but it reportedly did not bother him. He did not have re-experiencing symptoms and his avoidant symptoms were characterized as mild. Anxiety symptoms were also described as mild. The VA examiner determined that the Veteran did not appear to be suffering from any particular mental or emotional condition.
At his January 2018 Board hearing, the Veteran did not provide any testimony regarding any current mental health symptomatology or his traumatic in-service experiences, and he did not indicate that he was currently receiving any mental health treatment.
Based on a careful review of the subjective and clinical evidence, the Board finds that the preponderance of the evidence weighs against finding service connection for PTSD is warranted.
The Veteran's STRs are negative for any findings of mental health problems.
While the Veteran is certainly competent to report his history of mental health symptoms and in-service traumatic experiences, he has not demonstrated that he has the requisite specialized knowledge or training to diagnose such a medically complex condition as PTSD, or any other psychiatric disorder. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Notably, the Veteran declined to testify as to his current mental health symptoms as his January 2018 Board hearing, and he has not provided any competent and credible evidence that he has a mental health disorder. Accordingly, the Veteran's assertions that he may have a psychiatric disorder have little probative value.
No underlying disability has been clinically diagnosed during the appeal period or proximate thereto. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The available evidence shows that at his May 2009 VA examination, the VA examiner found no evidence that the Veteran was currently experiencing any mental or emotional condition, including PTSD.
Thus, the preponderance of the evidence weighs against finding in favor of the Veteran's service connection claim for PTSD. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
The appeal for entitlement to an initial evaluation in excess of 30 percent for esophageal reflux with Barrett's esophagitis is dismissed.
The appeal for entitlement to an effective date prior to January 19, 2010 for the grant of service connection for esophageal reflux with Barrett's esophagitis is dismissed.
Entitlement to service connection for PTSD is denied.
REMAND
Unfortunately, a remand is required in this case for the issue remaining on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration.
At his January 2018 Board hearing, the Veteran testified that his current skin disorder was caused either by his exposure to herbicides while serving in the "brown water" or inland waterways of Vietnam, or by his prolonged exposure to the sun while working aboard his naval ship or in-country in Vietnam. Alternatively, the Veteran also indicated that he was exposed to asbestos from the naval ship, and that his skin disorder could have also developed from such exposure.
Records show that the Veteran served aboard the naval ship Luzerne County (LST-902) from March 1968 to May 1968 and from September 1968 to March 1969. According to the Agent Orange Act of 1991 implemented under 38 C.F.R. § 3.307(a)(6(iii), evidence of service within the Republic of Vietnam, including aboard a ship that operated in its inland waterways, between January 9, 1962 and May 7, 1975, establish that the Veteran is presumed to have been exposed to herbicide agents. Inland waterways, also known as "brown water," include rivers, canals, estuaries, and deltas. Ships operating primarily or exclusively on Vietnam's inland waterways include smaller naval vessels involved with patrolling and interdicting enemy activity on the inland waterways of Vietnam and ships supplying and supporting those operations. Examples of such vessels include swift boats, river patrol boats, and LSTs (landing ship, tank). All Veterans who served aboard these vessels are eligible for the presumption of Agent Orange exposure because their primary service was on the inland waterways of Vietnam. See VA Adjudication Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H.2.a. (Updated March 27, 2018); see also Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (April 2, 2018).
By virtue of the Veteran's service aboard the USS Luzerne County (LST-902) during the relevant period, he is presumed to have been exposed to herbicide agents.
At a May 2009 VA examination, the VA examiner opined that the Veteran's diagnosed basal cell carcinoma, actinic keratosis and seborrheic keratosis were at least as likely as not due to his service. However, in the underlying rationale, the examiner noted that the Veteran had a history of skin cancer and pre-cancerous skin lesions in sun exposed areas and that given the increased risk of skin cancer and pre-cancerous skin lesion with sun exposure, it was possible that these lesions were related to time in-service. The VA examiner further noted that he did not have access to the Veteran's claims file at the time of the examination. That opinion is deemed inadequate, because the rationale was not based on a complete review of the Veteran's medical history as his claims file was not available. Moreover, the VA examiner provided a less than definitive conclusion stating that it was "possible" that the Veteran's skin lesions were related to service. Such a speculative opinion cannot be adequate for adjudicative purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).
At a November 2017 VA examination, the VA examiner opined that the Veteran's diagnosed tumors and neoplasms of the skin, including malignant melanoma, was less likely than not incurred in or caused by service. The VA examiner noted the Veteran's post-service history of skin cancer, but found that although he had service aboard a naval carrier and was on land during the Vietnam War, his service treatment records were silent for any documented skin conditions or treatment during service. Based on the lack of any in-service clinical evidence of skin problems, the VA examiner found that his current skin disorder had no link to service. However, the VA examiner did not specifically address the Veteran's specific contentions regarding neither his sun exposure nor his presumed herbicide exposure. Rather, the VA examiner relied solely on the lack of any in-service medical evidence to support his conclusion. The Board finds that for these reasons, the November 2017 VA opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007).
Moreover, the Board notes that the Veteran raised another theory of entitlement for his skin disorder, asbestos exposure, at his January 2018 Board hearing. As that theory has not been addressed, and the May 2009 and November 2017 VA opinions are inadequate, the Board finds that a supplemental VA opinion is required to determine the etiology of the Veteran's skin disorder.
Accordingly, the case is REMANDED for the following actions:
1. Conduct the necessary development to determine whether the Veteran was exposed to asbestos while serving aboard the USS Ticonderoga (CVA-14) from October 1962 to April 1966 and the USS Luzerne County (LST-902) from March 1968 to May 1968 and from September 1968 to March 1969.
2. Obtain all of the Veteran's outstanding treatment records for his skin disorder that are not currently of record.
3. After completing the above, to the extent possible, obtain a supplemental VA opinion from the November 2017 VA examiner, or another appropriately qualified examiner. Provide the claims file, including a copy of this REMAND, to the examiner for review.
After reviewing the claims file, the examiner should respond to the following:
Is it at least as likely as not (50 percent probability or greater) that the Veteran's current skin disorder had its onset during service, or was otherwise etiologically related to service, to include his presumed herbicide exposure, reported prolonged sun exposure, and/or his asbestos exposure?
In providing the above opinion, the VA examiner should presume that the Veteran was exposed to herbicide agents based on his Republic of Vietnam service. The VA examiner should address the Veteran's contention that he had prolonged exposure to the sun while serving aboard naval ships and on land in Vietnam. The VA examiner should address the Veteran's contention that he was exposed to the asbestos found aboard the naval ships during his service.
A complete rationale with discussion of medical literature for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case.
4. After ensuring compliance with the above, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. Then, return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
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LESLEY A. REIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs